Excerpt: - .....was concerned.2. it appears that the prosecution case was that the accused appellant joined the planning circle, p.w. d. as second grade clerk on 27-5-1960. the planning circle was housed in writers' buildings, calcutta for undertaking preliminaries in respect of some building schemes and also schemes for construction of roads and bridges. it had also administrative control over six other sections of p.w. d. the superintending engineer, planning circle was the drawing and disbursing officer for the planning circle and also the aforesaid six divisions. there was no sanctioned post of a cashier in any of the sections including the planning circle and the accused was placed in sole charge of the office cash of all these divisions of this planning circle. the disbursements were made by.....

Judgment:

A.N. Banerjee, J.

1. This appeal is directed against an order of conviction on two counts of the charge under Section 409 of the Indian Penal Code and sentence of rigorous imprisonment of five years each and further a fine of Rs. 5.000/- in respect of count No. 2, in default, to further rigorous imprisonment for 18 months. The substantive sentences in respect of both the counts were ordered to run concurrently. There were three counts of the charges and the accused appellant was found not guilty in so far as count No. 1 of the charge under Section 409 of the Indian Penal Code was concerned.

2. It appears that the prosecution case was that the accused appellant joined the Planning Circle, P.W. D. as second grade clerk on 27-5-1960. The Planning Circle was housed in Writers' Buildings, Calcutta for undertaking preliminaries in respect of some building schemes and also schemes for construction of roads and bridges. It had also administrative control over six other sections of P.W. D. The Superintending Engineer, Planning Circle was the drawing and disbursing officer for the planning circle and also the aforesaid six divisions. There was no sanctioned post of a cashier in any of the sections including the Planning Circle and the accused was placed in sole charge of the office cash of all these divisions of this Planning Circle. The disbursements were made by him. He absented himself from office from 5-1-1963 and on 7-1-1963 applied for a week's leave but resumed his duties on 14-1-1963. It is said that while working as Head Assistant in the aforesaid circle he, between 1-7-1962 and 31-12-1962 was entrusted with or had dominion over undisbursed cash of the office amounting to Rs. 7,232.04 paise and he committed criminal breach of trust in respect thereof. It was also alleged that between 1-1-1963 and 18-1-1963 while working as such he was entrusted with or had dominion over undisbursed cash amounts of the said office amounting to Rs. 958.19 P. and he committed criminal breach of trust in respect of the said sum. These were two items in respect of which the accused appellant was found guilty and convicted and sentenced as stated above.

3. Mr. Dilip Kumar Dutta Advocate, with Mr. P. K. Batabyal, Advocate appearing for the appellant argued on merits as also took the point that since the complainant was not examined by the learned Special Judge no cognizance was taken legally and as such the whole trial was vitiated. Mr. Monoj Kumar Mukherjee. Advocate, appearing for the State did not object to the ground taken by Mr. Dutta regarding the cognizance of the case but argued on merits and submitted that there were enough materials to warrant the order of conviction and sentence against the accused appellant.

4. It appears that by a notification being Notification No. 4916 J dated 13-5-1965 the Judicial Department of the Government of West Bengal in exercise of the powers conferred by Sub-section (2) of Section 4 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 distributed to the Additional Special Court the case of the State v. Accused Appellant under Section 409 of the Indian Penal Code. It further appears that on 13-9-1965 a petition of complaint was filed by one Santi Pada Banerjee, Sub Inspector of Police, Detective Department, Lalbazar and the learned Special Judge without examining the complainant took cognizance of the case on the basis of the aforesaid complaint. Mr. Dutta submitted that taking cognizance of the case in such a manner was wholly unwarranted by law and illegal and that as such the entire proceeding before the learned Special Court was liable to be quashed along with the order of conviction and sentence. In this connection, he drew our attention to an unreported decision of the Division Bench of this Hon'ble Court in the case Sudhir Chandra Bhattacharjee v. The State Criminal Appeals Nos. 23 to 26 of 1961, wherein at page 90, P. B. Mukharji, J. (as his Lordship then was) held that a police officer investigates a complaint and thereafter submits a petition of complaint; he does so not as a public servant but as a complainant and as such his examination under Section 200 of the Code of Criminal Procedure was essential. Bagchi, J. in a separate judgment also held the same view and further pointed out that non-examination of the said complainant would affect the jurisdiction of the Court to take cognizance and would vitiate the entire trial. In so far as the present case is concerned it will appear that the investigating officer filed the petition of complaint after investigation. That being so, we in respectful agreement with the aforesaid Division Bench decision of this Court, hold that cognizance taken by the learned Judge of the Special Court was not in accordance with the procedure established by law and that as such the entire proceeding was bad in law and liable to be quashed. Having taken such view, we do not feel called upon to enter into the merits of the case. We, therefore, hold that the entire proceeding should be quashed along with the order of conviction and sentence.

5. In the result, the appeal is allowed and the entire proceeding is quashed. The accused appellant who is on bail is directed to be discharged from his bail bonds.